An employment tribunal has awarded an agency worker in excess of £10,000 for a breach of equal pay rights (R.5 & R.6 Agency Workers Regulations 2010), namely to be paid what she would have received had she been recruited directly by the hirer upon completion of the requisite 12 week qualifying period. It concerned a claim for R.5 rights by an experienced music teacher who had been supplied to the school and became entitled to those rights once she had completed the 12 week qualifying period.
She had made enquiries of the supplying employment business as to what she would be entitled to under the AWR 2010, which had in turn sought this information from the school, but to no avail. Having not seen any increase in her pay rate after the 12 weeks she asked the supplying agency whether they would pursue a claim, to which they had indicated that court proceedings were not worth the cost. She later learned that she could bring a claim under the AWR herself, which she did.
The tribunal awarded her the difference between what she was paid by the agency and what she would have been paid had she worked directly for the school, something perhaps more easily ascertainable due to the pay-scales that operate throughout the state school sector, a total of £98 for 111 days. What marks the ruling out is that it was the hirer who was found responsible for the breach of the regulations, on the basis that the supplying agency had sought information from the school as to what a comparable employee would be paid. These were steps which the tribunal regarded as reasonable, ruling that it was the school’s failure to provide this information which was indicative of its liability for the breach of the regulations.
The ruling is a stark reminder of the importance of collating information from hirers at the outset of an assignment as to what they would pay someone directly to do the same or similar job and to keep a record of this, as this can be used as evidence of striving to comply with the AWR.
For those of you using Lawspeed contracts, the forms included within the client and candidate facing documents relating to the AWR will assist in maintaining compliance with the regulations, as well as providing the reassurance that you have undertaken the necessary due diligence to mitigate liability in similar circumstances.
If you need any assistance in this area, please call Lawspeed on 01273 236 236.